Employer pays more than $250K in damages, lack of FMLA training a factor

Company claimed worker violated policy when her son informed them she was hospitalized

Posted November 2, 2017

When employees are unable to call in and provide information about a sudden absence, they are generally relieved of this requirement, particularly when a family member has provided such information. What if the employee can physically speak, and your company has a policy requiring employees to personally call in if they are going to be out, and a no-call/no-show policy that provides for termination if they violate the latter policy?

Case in point

Amber, an employee, was hospitalized due to mental health issues that arose suddenly. Amber asked her son, Tom, to inform her employer of her situation, which he did. He indicated that his mom was very sick and at the emergency room. The next day, Amber was transported to a psychiatric facility, and Tom received a call from Amber’s supervisor on her status. Again, Tom indicated that she was in the hospital, and he was unsure when she would be able to return to work. The supervisor advised Tom to contact the company’s HR office.

After talking to Tom, the HR office sent out the Family and Medical Leave Act (FMLA) paperwork, but asked Tom if Amber could speak. Tom indicated that she could. Tom was then told that it was not acceptable for him to call the company instead of his mother, and he was not to call again. Worthy of note in this case is that none of the supervisors or HR professionals had received training on the FMLA.

While Amber could speak, she was unintelligible, and unable to call the company while in the hospital.

At the company, it was decided that Amber had violated the company’s no-call/no-show policy because she was absent without personally calling in on the days after Tom was told to no longer call. Therefore, Amber was considered to have abandoned her job. A termination letter was generated, and a member of upper management (who had FMLA training, but was not informed that Amber was hospitalized), signed it.

Amber’s doctor provided a certification, and indicated that Amber would be able to return to work in about a month. When Amber called in to notify the company of her intention to return to work, she was informed that she had violated the no-call/no-show, and was terminated.

At no time did company representatives ask Amber for clarification or more information regarding her absence and her ability to communicate.

Amber sued, and the court found in her favor, citing the employer’s lack of honest intention to ascertain FMLA requirements. It did not investigate the situation further, it did not seek out advice about its FMLA obligations, it did not reexamine the termination decision after Amber provided more information, and those who made termination decisions had no FMLA training.

All these failings moved the court to allow for liquidated (double) damages, bringing the price tag to over $250,000.